Thats
the new accusation in some big, nationwide workplace discrimination cases that
Minnesota employers and their lawyers are closely watching.

Unconscious
bias is an element in two pending class-action lawsuits potentially involving
millions of workers, one by women against Wal-Mart, and another by blacks against
Walgreens.

Its
fundamental to an enforcement effort announced last month by the federal Equal
Employment Opportunity Commission (EEOC) that focuses on filing subtle
discrimination lawsuits and educating employers. Its called eradicating
Racism and Colorism from Employment (E-RACE).

How
can employees prove that prejudices lie deep in their boss unconscious?
How can bosses disprove bias that is by definition invisible to themselves?

Its
an evolving tactic, according to several lawyers, whose opinions on unconscious
bias range from junk science to an important breakthrough.

Also
called implicit bias, the concept stems from both common sense and growing social
science research that human beings make all kinds of assumptions about other
people.

When
those assumptions are unconscious and discriminatory, youve got a legal
problem, said Joan Williams, an attorney at the Center for WorkLife Law in California
who has done a lot of work on gender bias.

One
example: When a female lawyer who worked full time was away from her desk, her
colleagues assumed that she was in a meeting. When she started working part
time and was away from her desk, her colleagues assumed she was at home with
her child. And suddenly her job evaluations went bad, Williams said.

This
is the face of discrimination today, Williams said.

The
EEOC is using unconscious bias in more race discrimination challenges, said
Assistant General Counsel Carolyn Wheeler in Washington. For example, in a lawsuit
filed against Walgreens this month, the commission alleges that the pharmacy
chain placed its black employees in poor stores or stores in black neighborhoods.

Like
most class-action cases, you start with numbers to show that minority employees
are disproportionately found in certain jobs or at certain sites, Wheeler said.

Just
to say everybody has biases will not be that helpful, she said. How
you translate that into employment cases is a very different question, just
now being explored by litigators, to see if this can help explain those numbers
to courts and to juries.

But
arguing unconscious bias can turn into reverse discrimination, said Charles
Feuss, an employment attorney at Ford & Harrison in Minneapolis who represents
employers.

Take
the Wal-Mart lawsuit in California, Feuss said, where 2 million female employees
allege sex discrimination. The court allowed testimony that the companys
hiring process was prone to subjective decisions by far-flung managers, opening
the door to unconscious bias.

Thats
like accusing all the store managers of discrimination without having to prove
anything about each of them, Feuss said.

If
you can just say that the system in place is inherently biased, you can cobble
together an eye-popping class action case, he said. Employers need
to take a hard look at their decision-making mechanisms, scrutinizing, How
can we make our decisions objective?

Williams,
the California attorney, noted that any systems must take into account leniency
bias, because people are known to judge people like themselves more leniently
and favorably than others.

In one
EEOC study, for example, New York employers were more likely to hire white job
applicants over black applicants - even though only the white applicants came
with criminal records.

Williams
also preferred the phrase unexamined bias, she said, because
when you use the word unconscious people say, How on earth
can I be held accountable for something Im not even conscious of?

In fact,
employers can train employees to spot and overcome their previously unexamined
biases, Williams said. You cant control those biases, but you can
control whether or not they rule your behavior.

Feuss
added that if the EEOCs goal is to get employers attention, its
working.

Managers
are saying I dont want to be the next Walgreens, or the next Wal-Mart,
 he said.

Two lawsuits promote growing awareness
of unconscious bias. Can an employer discriminate against a
worker without being conscious of it? The federal courts will be called
upon to find an answer to that question. by H.J. Cummins. Star
Tribune, March 29, 2007, p. D1 & D6